The Kashmir Bar Association has pleaded that rights of pellet victims can’t be ignored and excessive use of pellets violates Article 21 (Right to life) of the Constitution.
Pleading the Bar’s case before a division bench of Chief Justice Gita Mittal and Justice Rashid Ali Dar, senior Advocate Z A Shah argued that “punitive damages are to be paid to the victims if the Government responds to the unarmed crowds by using pellets disproportionately as it violates Article 21 and rights of the victims can’t be ignored.”
“The way the State has responded to control the crowds by using disproportionate force against these unarmed mobs is breach of Article 21 (Right to life) of the Constitution. If there is breach of Article 21, then the Government has to pay punitive damages to the persons who have suffered,” Shah said.
The bench has been hearing the Public Interest Litigation (PIL) by the Bar Association on regular basis after Supreme Court directed the Court to decide within six weeks on reliefs – rehabilitation, treatment and compensation – to the pellet victims
He questioned whether the Government was free to use any mechanism as means of crowed control and if the Government was free to use any weaponry while dealing with protests. “Assuming that Government can choose any weaponry as means of crowd control, whether any procedure is to be followed in the actual use of the weaponry,” he argued.
The senior lawyer said that while using a gun to shoot at a crowd, permission of the magistrate was necessary in keeping with the law.
“In the same manner while using pellet guns which also cause death when used from a short range, permission of a magistrate is mandatory,” he said.
In case stone pelters, Shah said, violates ordinary law by throwing stones at security forces, response has to be proportional. “For this purpose accountability is necessary,” he pleaded.
“When the state is using the pellet guns which comprises of a cartridge with sharp edged lead pellets which disperse at high speed in all directions, it causes extensive damage to the human body. The pellets tend to damage the soft tissues like eye and cause permanent blindness” he said.
“It is to be seen whether the agitating mob is causing damage to the property. Even if it causes damage, it does not mean they deserve to be killed by using disproportionate force of pellet,” Shah said. “A gun kills a person, a stone cannot. So to disperse a mob holding stones, gun cannot be used as a crowed control means”.
Shah told the Court that use of pellets by security forces killed people in Kashmir, left many blinded and others maimed, in the recent years. “Even a 19 month-old child Hiba (from Pulwama) was hit with a pellet in her right eye,” he said.
In response to the submissions made by Shah, the Chief Justice Mittal observed: “The stone pelters are trying to save the holed up militants and are culpable of offences”.
The senior advocate told the Court that the power of law enforcing agencies while dealing with the crowds was a “regulated power”.
“The legislature has not left it open to the Government to deal with the crowds on their discretion,” Shah said.
The provisions of criminal Procedure Code (CrPC), he said, like section 127 to 134 control powers of the State.
He pointed out that in the event any weaponry was to be used, permission of the executive magistrate was necessary. “No police officer could take any such decision except for a mild lathi-charge,” he argued.
In this regard, Shah said, no material had been produced in the case by the official respondents which clearly leads to the conclusion that use of the pellet guns which have caused death and permanent body injuries was “done without authority” of any magistrate, and fundamental rights of victims under Article 21 were “duly violated”.